IN THE CASE OF:
BOARD DATE: 26 April 2011
DOCKET NUMBER: AR20100025566
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests award of the Purple Heart.
2. The applicant states:
* he should have received the Purple Heart
* at the time of his injury he was asked if he wanted a Purple Heart or to be sent back to the world and he said, "send me home"
* he was injured during a mortar attack
* he was hit by shrapnel and it tore up his right knee
* he was evacuated to Japan and spent 30 days there with a cast on his right leg
* he was then sent to Fort Knox, KY, for surgery and rehabilitation
3. The applicant provides no additional evidence.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. He was ordered to active duty from the U.S. Army Reserve on 5 July 1968. He served as a dentist in Vietnam from 7 to 22 May 1969. On 4 August 1970, he was released from active duty in the rank of captain.
3. His DD Form 214 (Report of Transfer or Discharge) does not show the Purple Heart as an authorized award.
4. There are no orders for the Purple Heart in his service personnel records.
5. His name does not appear on the Vietnam casualty roster.
6. A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.
7. A DA Form 8-274 (Medical Condition Physical Profile Record), dated 8 January 1969, from the U.S. Darnall Hospital, Fort Hood, TX, shows he was issued a permanent physical profile of "3" for lower extremities. His defects were listed as torn cartilage of his right knee and recurrent patella dislocation of his right knee.
8. A DA Form 8-274, dated 27 May 1969, from the U.S. Army Hospital, Camp Zama, Japan, shows he was issued a temporary physical profile of "3" for lower extremities. His defect was listed as a possible medial meniscus tear of his right knee and indicated he was under treatment.
9. A DA Form 3349 (Medical Condition - Physical Profile Record), dated 24 June 1969, from the U.S. Army Hospital, Camp Zama, Japan, shows he was issued a permanent physical profile of "3" for lower extremities. His defects were listed as internal derangement of his right knee and chronic traumatic synovitis shown to have existed prior to service (EPTS).
10. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. He contends he injured his right knee in Vietnam during a mortar attack when he was hit by shrapnel and he was evacuated to Japan. However, contemporaneous medical evidence shows he had right knee problems (torn cartilage, right knee and recurrent dislocation, patella, right knee) prior to serving in Vietnam, and medical records from Camp Zama, Japan, show his right knee condition as EPTS.
2. There are no orders for the Purple Heart in the available records. There is no evidence of record and the applicant did not provide any evidence that shows he was wounded or injured as a result of hostile action in Vietnam. Therefore, there is insufficient evidence to support award of the Purple Heart in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ____X___ ____X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
____________X_____________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20100025566
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ABCMR Record of Proceedings (cont) AR20100025566
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